As a member of the U.S. Army Reserves, Vincent Staub was required to attend occasional weekend training as well as a two-week training program during the summer. Staub was also a lab technician at Proctor Hospital in Peoria, Ill. He was fired in 2004 and later filed a lawsuit claiming that his supervisor was out to get him as a result of disapproval of his military service. He won $57,640 in damages at trial. But a more senior executive, not the supervisor, ultimately decided to fire Staub. The U.S. Court of Appeals for the Seventh Circuit reversed, holding that there was no evidence that the decision-maker shared the supervisor's anti-military bias.

Yes. The Supreme Court reversed the lower court decision in a unanimous decision announced by Justice Antonin Scalia. "If a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable," wrote Scalia. Justice Samuel Alito, joined by Justice Clarence Thomas, concurred in the judgment but wrote that he would hold employers liable if the person making the firing decision "merely rubberstamps" a biased supervisor's recommendation or when the decision-maker is "put on notice that adverse information about an employee may be based on antimilitary animus but does not undertake an independent investigation of the matter."

Justice Elena Kagan took no part in consideration of the case.

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OPINION OF THE COURT
STAUB V. PROCTOR HOSPITAL
562 U. S. ____ (2011)

SUPREME COURT OF THE UNITED STATES
NO. 09-400

VINCENT E. STAUB, PETITIONER v. PROCTOR
HOSPITAL

on writ of certiorari to the united states court of appeals for the seventh circuit

[March 1, 2011]

Justice Scalia delivered the opinion of the Court.

We consider the circumstances under which an employer may be held liable for employment discrimination based on the discriminatory animus of an employee who influenced, but did not make, the ultimate employment decision.

I

Petitioner Vincent Staub worked as an angiography technician for respondent Proctor Hospital until 2004, when he was fired. Staub and Proctor hotly dispute the facts surrounding the firing, but because a jury found for Staub in his claim of employment discrimination against Proctor, we describe the facts viewed in the light most favorable to him.

While employed by Proctor, Staub was a member of the United States Army Reserve, which required him to attend drill one weekend per month and to train full time for two to three weeks a year. Both Janice Mulally, Staub’s immediate supervisor, and Michael Korenchuk, Mulally’s supervisor, were hostile to Staub’s military obligations. Mulally scheduled Staub for additional shifts without notice so that he would “ ‘pa[y] back the department for everyone else having to bend over backwards to cover [his] schedule for the Reserves.’ ” 560 F. 3d 647, 652 (CA7 2009). She also informed Staub’s co-worker, Leslie Sweborg, that Staub’s “ ‘military duty had been a strain on th[e] department,’ ” and asked Sweborg to help her “ ‘get rid of him.’ ” Ibid. Korenchuk referred to Staub’s military obligations as “ ‘a b[u]nch of smoking and joking and [a] waste of taxpayers[’] money.’ ” Ibid. He was also aware that Mulally was “ ‘out to get’ ” Staub. Ibid.

In January 2004, Mulally issued Staub a “Corrective Action” disciplinary warning for purportedly violating a company rule requiring him to stay in his work area whenever he was not working with a patient. The Corrective Action included a directive requiring Staub to report to Mulally or Korenchuk “ ‘when [he] ha[d] no patients and [the angio] cases [we]re complete[d].’ ” Id., at 653. According to Staub, Mulally’s justification for the Corrective Action was false for two reasons: First, the company rule invoked by Mulally did not exist; and second, even if it did, Staub did not violate it.

On April 2, 2004, Angie Day, Staub’s co-worker, complained to Linda Buck, Proctor’s vice president of human resources, and Garrett McGowan, Proctor’s chief operating officer, about Staub’s frequent unavailability and abruptness. McGowan directed Korenchuk and Buck to create a plan that would solve Staub’s “ ‘availability’ problems.” Id., at 654. But three weeks later, before they had time to do so, Korenchuk informed Buck that Staub had left his desk without informing a supervisor, in violation of the January Corrective Action. Staub now contends this accusation was false: he had left Korenchuk a voice-mail notification that he was leaving his desk. Buck relied on Korenchuk’s accusation, however, and after reviewing Staub’s personnel file, she decided to fire him. The termination notice stated that Staub had ignored the directive issued in the January 2004 Corrective Action.

Staub challenged his firing through Proctor’s grievance process, claiming that Mulally had fabricated the allegation underlying the Corrective Action out of hostility toward his military obligations. Buck did not follow
up with Mulally about this claim. After discussing the matter with another personnel officer, Buck adhered to her decision.

Staub sued Proctor under the Uniformed Services Employment and Reemployment Rights Act of 1994, 38 U. S. C. §4301 et seq., claiming that his discharge was motivated by hostility to his obligations as a military reservist. His contention was not that Buck had any such hostility but that Mulally and Korenchuk did, and that their actions influenced Buck’s ultimate employment decision. A jury found that Staub’s “military status was a motivating factor in [Proctor’s] decision to discharge him,” App. 68a, and awarded $57,640 in damages.

The Seventh Circuit reversed, holding that Proctor was entitled to judgment as a matter of law. 560 F. 3d 647. The court observed that Staub had brought a “ ‘cat’s paw’ case,” meaning that he sought to hold his employer liable for the animus of a supervisor who was not charged with making the ultimate employment decision. Id., at 655–656.[Footnote 1] It explained that under Seventh Circuit precedent, a “cat’s paw” case could not succeed unless the nondecisionmaker exercised such “ ‘singular influence’ ” over the decisionmaker that the decision to terminate was the product of “blind reliance.” Id., at 659. It then noted that “Buck looked beyond what Mulally and Korenchuk said,” relying in part on her conversation with Day and her review of Staub’s personnel file. Ibid. The court “admit[ted] that Buck’s investigation could have been more robust,” since it “failed to pursue Staub’s theory that Mulally fabricated the write-up.” Ibid. But the court said that the “ ‘singular influence’ ” rule “does not require the decisionmaker to be a paragon of independence”: “It is enough that the decisionmaker is not wholly dependent on a single source of information and conducts her own investigation into the facts relevant to the decision.” Ibid. (internal quotation marks omitted). Because the undisputed evidence established that Buck was not wholly dependent on the advice of Korenchuk and Mulally, the court held that Proctor was entitled to judgment. Ibid.

We granted certiorari. 559 U. S. ___ (2010).

II

The Uniformed Services Employment and Reemployment Rights Act (USERRA) provides in relevant part as follows:

“A person who is a member of … or has an obligation to perform service in a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership, … or obligation.” 38 U. S. C. §4311(a).

It elaborates further:

“An employer shall be considered to have engaged in actions prohibited … under subsection (a), if the person’s membership … is a motivating factor in the employer’s action, unless the employer can prove that the action would have been taken in the absence of such membership.” §4311(c).

The statute is very similar to Title VII, which prohibits employment discrimination “because of … race, color, religion, sex, or national origin” and states that such discrimination is established when one of those factors “was a motivating factor for any employment practice, even though other factors also motivated the practice.” 42 U. S. C. §§2000e–2(a), (m).

The central difficulty in this case is construing the phrase “motivating factor in the employer’s action.” When the company official who makes the decision to take an adverse employment action is personally acting out of hostility to the employee’s membership in or obligation to a uniformed service, a motivating factor obviously exists. The problem we confront arises when that official has no discriminatory animus but is influenced by previous company action that is the product of a like animus in someone else.

Staub contends that the fact that an unfavorable entry on the plaintiff’s personnel record was caused to be put there, with discriminatory animus, by Mulally and Korenchuk, suffices to establish the tort, even if Mulally and Korenchuk did not intend to cause his dismissal. But discrimination was no part of Buck’s reason for the dismissal; and while Korenchuk and Mulally acted with discriminatory animus, the act they committed—the mere making of the reports—was not a denial of “initial employment, reemployment, retention in employment, promotion, or any benefit of employment,” as liability under USERRA requires. If dismissal was not the object of Mulally’s and Korenchuk’s reports, it may have been
their result, or even their foreseeable consequence, but that is not enough to render Mulally or Korenchuk
responsible.

Here, however, Staub is seeking to hold liable not Mulally and Korenchuk, but their employer. Perhaps, therefore, the discriminatory motive of one of the employer’s agents (Mulally or Korenchuk) can be aggregated with the act of another agent (Buck) to impose liability on Proctor. Again we consult general principles of law, agency law, which form the background against which federal tort laws are enacted. See Meyer v. Holley, 537 U. S. 280, 285 (2003); Burlington, supra, at 754–755. Here, however, the answer is not so clear. The Restatement of Agency suggests that the malicious mental state of one agent cannot generally be combined with the harmful action of another agent to hold the principal liable for a tort that requires both. See Restatement (Second) Agency §275, Illustration 4 (1958). Some of the cases involving federal torts apply that rule. See United States v. Science Applications Int’l Corp., 626 F. 3d 1257, 1273–1276 (CADC 2010); Chaney v. Dreyfus Service Corp., 595 F. 3d 219, 241 (CA5 2010); United States v. Philip Morris USA Inc., 566 F. 3d 1095, 1122 (CADC 2009). But another case involving a federal tort, and one involving a federal crime, hold to the contrary. See United States ex rel. Harrison v. Westinghouse Savannah River Co., 352 F. 3d 908, 918–919 (CA4 2003); United States v. Bank of New England, N. A., 821 F. 2d 844, 856 (CA1 1987). Ultimately, we think it unnecessary in this case to decide what the background rule of agency law may be, since the former line of authority is suggested by the governing text, which requires that discrimination be “a motivating factor” in the adverse action. When a decision to fire is made with no unlawful animus on the part of the firing agent, but partly on the basis of a report prompted (unbeknownst to that agent) by discrimination, discrimination might perhaps be called a “factor” or a “causal factor” in the decision; but it seems to us a considerable stretch to call it “a motivating factor.”

Proctor, on the other hand, contends that the employer is not liable unless the de facto decisionmaker (the technical decisionmaker or the agent for whom he is the “cat’s paw”) is motivated by discriminatory animus. This avoids the aggregation of animus and adverse action, but it seems to us not the only application of general tort law that can do so. Animus and responsibility for the adverse action can both be attributed to the earlier agent (here, Staub’s supervisors) if the adverse action is the intended consequence of that agent’s discriminatory conduct. So long as the agent intends, for discriminatory reasons, that the adverse action occur, he has the scienter required to be liable under USERRA. And it is axiomatic under tort law that the exercise of judgment by the decisionmaker does not prevent the earlier agent’s action (and hence the earlier agent’s discriminatory animus) from being the proximate cause of the harm. Proximate cause requires only “some direct relation between the injury asserted and the injurious conduct alleged,” and excludes only those “link[s] that are too remote, purely contingent, or indirect.” Hemi Group, LLC v. City of New York, 559 U. S. 1, ___ (2010) (slip op., at 9) (internal quotation marks omitted).[Footnote 2] We do not think that the ultimate decisionmaker’s exercise of judgment automatically renders the link to the supervisor’s bias “remote” or “purely contingent.” The decisionmaker’s exercise of judgment is also a proximate cause of the employment decision, but it is common for injuries to have multiple proximate causes. See Sosa v. Alvarez-Machain, 542 U. S. 692, 704 (2004). Nor can the ultimate decisionmaker’s judgment be deemed a superseding cause of the harm. A cause can be thought “superseding” only if it is a “cause of independent origin that was not foreseeable.” Exxon Co., U. S. A. v. Sofec, Inc., 517 U. S. 830, 837 (1996) (internal quotation marks omitted).

Moreover, the approach urged upon us by Proctor gives an unlikely meaning to a provision designed to prevent employer discrimination. An employer’s authority to reward, punish, or dismiss is often allocated among multiple agents. The one who makes the ultimate decision does so on the basis of performance assessments by other supervisors. Proctor’s view would have the improbable consequence that if an employer isolates a personnel official from an employee’s supervisors, vests the decision to take adverse employment actions in that official, and asks that official to review the employee’s personnel file before taking the adverse action, then the employer will be effectively shielded from discriminatory acts and recommendations of supervisors that were designed and intended to produce the adverse action. That seems to us an implausible meaning of the text, and one that is not compelled by its words.

Proctor suggests that even if the decisionmaker’s mere exercise of independent judgment does not suffice to negate the effect of the prior discrimination, at least the decisionmaker’s independent investigation (and rejection) of the employee’s allegations of discriminatory animus ought to do so. We decline to adopt such a hard-and-fast rule. As we have already acknowledged, the requirement that the biased supervisor’s action be a causal factor of the ultimate employment action incorporates the traditional tort-law concept of proximate cause. See, e.g.,Anza v. Ideal Steel Supply Corp., 547 U. S. 451, 457–458 (2006); Sosa, supra, at 703. Thus, if the employer’s investigation results in an adverse action for reasons unrelated to the supervisor’s original biased action (by the terms of USERRA it is the employer’s burden to establish that), then the employer will not be liable. But the supervisor’s biased report may remain a causal factor if the independent investigation takes it into account without determining that the adverse action was, apart from the supervisor’s recommendation, entirely justified. We are aware of no principle in tort or agency law under which an employer’s mere conduct of an independent investigation has a claim-preclusive effect. Nor do we think the independent investigation somehow relieves the employer of “fault.” The employer is at fault because one of its agents committed an action based on discriminatory animus that was intended to cause, and did in fact cause, an adverse employment decision.

Justice Alito claims that our failure to adopt a rule immunizing an employer who performs an independent investigation reflects a “stray[ing] from the statutory text.” Post, at 2 (opinion concurring in judgment). We do not understand this accusation. Since a supervisor is an agent of the employer, when he causes an adverse employment action the employer causes it; and when discrimination is a motivating factor in his doing so, it is a “motivating factor in the employer’s action,” precisely as the text requires. Justice Alito suggests that the employer should be held liable only when it “should be regarded as having delegated part of the decisionmaking power” to the biased supervisor. Ibid. But if the independent investigation relies on facts provided by the biased supervisor—as is necessary in any case of cat’s-paw liability—then the employer (either directly or through
the ultimate decisionmaker) will have effectively delegated the factfinding portion of the investigation to the biased supervisor. Contrary to Justice Alito’s suggestion, the biased supervisor is not analogous to a witness at a bench trial. The mere witness is not an actor in the events that are the subject of the trial. The biased supervisor and the ultimate decisionmaker, however, acted as agents of the entity that the plaintiff seeks to hold liable; each of them possessed supervisory authority delegated by their employer and exercised it in the interest of their employer. In sum, we do not see how “fidelity to the statutory text,” ibid., requires the adoption of an independent-investigation defense that appears nowhere in the text. And we find both speculative and implausible Justice Alito’s prediction that our Nation’s employers will systematically disfavor members of the armed services in their hiring decisions to avoid the possibility of cat’s-paw liability, a policy that would violate USERRA in any event.

We therefore hold that if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action,[Footnote 3] and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA. [Footnote 4]

III

Applying our analysis to the facts of this case, it is clear that the Seventh Circuit’s judgment must be reversed. Both Mulally and Korenchuk were acting within the scope of their employment when they took the actions that allegedly caused Buck to fire Staub. A “reprimand … for workplace failings” constitutes conduct within the scope of an agent’s employment. Faragher v. Boca Raton, 524 U. S. 775, 798–799 (1998). As the Seventh Circuit recognized, there was evidence that Mulally’s and Korenchuk’s actions were motivated by hostility toward Staub’s military obligations. There was also evidence that Mulally’s and Korenchuk’s actions were causal factors underlying Buck’s decision to fire Staub. Buck’s termination notice expressly stated that Staub was terminated because he had “ignored” the directive in the Corrective Action. Finally, there was evidence that both Mulally and Korenchuk had the specific intent to cause Staub to be terminated. Mulally stated she was trying to “ ‘get rid of ’ ” Staub, and Korenchuk was aware that Mulally was “ ‘out to get’ ” Staub. Moreover, Korenchuk informed Buck, Proctor’s personnel officer responsible for terminating employees, of Staub’s alleged noncompliance with Mulally’s Corrective Action, and Buck fired Staub immediately thereafter; a reasonable jury could infer that Korenchuk intended that Staub be fired. The Seventh Circuit therefore erred in holding that Proctor was entitled to judgment as a matter of law.

It is less clear whether the jury’s verdict should be reinstated or whether Proctor is entitled to a new trial. The jury instruction did not hew precisely to the rule we adopt today; it required only that the jury find that “military status was a motivating factor in [Proctor’s] decision to discharge him.” App. 68a. Whether the variance between the instruction and our rule was harmless error or should mandate a new trial is a matter the Seventh Circuit may consider in the first instance.

* * *

The judgment of the Seventh Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice Kagan took no part in the consideration or decision of this case.

The term “cat’s paw” derives from a fable conceived by Aesop, put into verse by La Fontaine in 1679, and injected into United States employment discrimination law by Posner in 1990. See Shager v. Upjohn Co., 913 F. 2d 398, 405 (CA7). In the fable, a monkey induces a cat by flattery to extract roasting chestnuts from the fire. After the cat has done so, burning its paws in the process, the monkey makes off with the chestnuts and leaves the cat with nothing. A coda to the fable (relevant only marginally, if at all, to employment law) observes that the cat is similar to princes who, flattered by the king, perform services on the king’s behalf and receive no reward.

Under the traditional doctrine of proximate cause, a tortfeasor is sometimes, but not always, liable when he intends to cause an adverse action and a different adverse action results. See Restatement (Second) Torts §§435, 435B and Comment a (1963 and 1964). That issue is not presented in this case since the record contains no evidence that Mulally or Korenchuk intended any particular adverse action other than Staub’s termination.

Under traditional tort law, “ ‘intent’ … denote[s] that the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it.” Id., §8A.

Needless to say, the employer would be liable only when the supervisor acts within the scope of his employment, or when the supervisor acts outside the scope of his employment and liability would be imputed to the employer under traditional agency principles. See Burlington Industries, Inc. v. Ellerth, 524 U. S. 742, 758 (1998). We express no view as to whether the employer would be liable if a co-worker, rather than a supervisor, committed a discriminatory act that influenced the ultimate employment decision. We also observe that Staub took advantage of Proctor’s grievance process, and we express no view as to whether Proctor would have an affirmative defense if he did not. Cf. Pennsylvania State Police v. Suders, 542 U. S. 129, 148–149 (2004).

I agree with the Court that the decision of the Court of Appeals must be reversed, but I would do so based on the statutory text, rather than principles of agency and tort law that do not speak directly to the question presented here.

The relevant statutory provision states:

“An employer shall be considered to have engaged in [prohibited discrimination against a member of one of the uniformed services] if the person’s membership … is a motivating factor in the employer’s action, unless the employer can prove that the action would have been taken in the absence of such membership … .” 38 U. S. C. §4311(c)(1) (emphasis added).

For present purposes, the key phrase is “a motivating factor in the employer’s action.” A “motivating factor” is a factor that “provide[s] … a motive.” See Webster’s Third New International Dictionary 1475 (1971) (defining “motivate”). A “motive,” in turn, is “something within a person … that incites him to action.” Ibid. Thus, in order for discrimination to be “a motivating factor in [an] employer’s action,” discrimination must be present “within,” i.e., in the mind of, the person who makes the decision to take that action. And “the employer’s action” here is the decision to fire petitioner. Thus, petitioner, in order to recover, was required to show that discrimination motivated that action.

The Court, however, strays from the statutory text by holding that it is enough for an employee to show that discrimination motivated some other action and that this latter action, in turn, caused the termination decision. That is simply not what the statute says.

The Court fears this interpretation of the statute would allow an employer to escape liability by assigning formal decisionmaking authority to an officer who may merely rubberstamp the recommendation of others who are motivated by antimilitary animus. See ante, at 8. But fidelity to the statutory text does not lead to this result. Where the officer with formal decisionmaking authority merely rubberstamps the recommendation of others, the employer, I would hold, has actually delegated the decisionmaking responsibility to those whose recommendation is rubberstamped. I would reach a similar conclusion where the officer with the formal decisionmaking authority is put on notice that adverse information about an employee may be based on antimilitary animus but does not undertake an independent investigation of the matter. In that situation, too, the employer should be regarded as having delegated part of the decisionmaking power to those who are responsible for memorializing and transmitting the adverse information that is accepted without examination. The same cannot be said, however, where the officer with formal decisionmaking responsibility, having been alerted to the possibility that adverse information may be tainted, undertakes a reasonable investigation and finds insufficient evidence to dispute the accuracy of that information.

Nor can the employer be said to have “effectively delegated” decisionmaking authority any time a decisionmaker “relies on facts provided by [a] biased supervisor.” See ante, at 10. A decisionmaker who credits information provided by another person—for example, a judge who credits the testimony of a witness in a bench trial—does not thereby delegate a portion of the decisionmaking authority to the person who provides the information.

This interpretation of §4311(c)(1) heeds the statutory text and would provide fair treatment for both employers and employees who are members of the uniformed services. It would also encourage employers to establish internal grievance procedures similar to those that have been adopted following our decisions in Burlington Industries, Inc. v. Ellerth, 524 U. S. 742 (1998), and Faragher v. Boca Raton, 524 U. S. 775 (1998). Such procedures would often provide relief for employees without the need for litigation, and they would provide protection for employers who proceed in good faith.

The Court’s contrary approach, by contrast, is almost certain to lead to confusion and is likely to produce results that will not serve the interests of either employers or employees who are members of the uniformed services. The Court’s holding will impose liability unfairly on employers who make every effort to comply with the law, and it may have the perverse effect of discouraging employers from hiring applicants who are members of the Reserves or the National Guard. In addition, by leaving open the possibility that an employer may be held liable if it innocently takes into account adverse information provided, not by a supervisor, but by a low-level employee, see ante, at 10–11, n. 4, the Court increases the confusion that its decision is likely to produce.

For these reasons, I cannot accept the Court’s interpretation of §4311(c)(1), but I nevertheless agree that the decision below must be reversed. There was sufficient evidence to support a finding that at least Korenchuk was actually delegated part of the decisionmaking authority in this case. Korenchuk was the head of the unit in which Staub worked and it was Korenchuk who told Buck that Staub left his work area without informing his supervisors. There was evidence that Korenchuk’s accusation formed the basis of Buck’s decision to fire Staub, and that Buck simply accepted the accusation at face value. According to one version of events, Buck fired Staub immediately after Korenchuk informed her of Staub’s alleged misconduct, and she cited only that misconduct in the termination notice provided to Staub. See 5 Record 128–129, 267–268, 380–386; App. 74a. All of this is enough to show that Korenchuk was in effect delegated some of Buck’s termination authority. There was also evidence from which it may be inferred that displeasure with Staub’s Reserve responsibilities was a motivating factor in Korenchuk’s actions.

See 5 Record 343–344 (testimony that Korenchuk made negative remarks about Staub’s Reserve duties before firing him in 1998); id., at 124–126, 352 (testimony that Korenchuk informed Staub of the revenue lost while he was on Active Duty in 2003, that Korenchuk was aware in January 2004 that Staub might be called to Active Duty again, and that “[b]udget was a big issue with [Korenchuk]”).

There are two principal agency doctrines on which liability can be based.

Justice Samuel Alito: Well, before we jump to agency law, shouldn't we take a look at the language of the statute?

Mr. Schnapper: Yes, Your Honor.

Justice Samuel Alito: And the statute says that a prima facie case is made out if it is shown that military service, anti-military animus, was a motivating factor in the employer's action.

The employer's action here was discharge, right?

Mr. Schnapper: That's correct.

Justice Samuel Alito: And the word "motivate" means to provide someone with a motive to do something, right?

Mr. Schnapper: Yes, sir.

Justice Samuel Alito: And the person who did something here was the person who discharged, discharged Mr. Staub, right?

Mr. Schnapper: Well, that's not the--

Justice Samuel Alito: So why doesn't it follow that the motivation that is relevant under the statute is the motivation of the person who -- who performs the action that is challenged?

Mr. Schnapper: --Well, there is a -- there are a series of actions and decisions that yield this result.

And the reference in the statute is to the actions of the employer, not to any particular official.

And so--

Justice Samuel Alito: No, but the -- what is -- what is made illegal are certain employer actions, right?

Not everything that's done, not -- just writing up a bad report for a biased reason is not actionable under this statute; isn't that correct?

Mr. Schnapper: --That's correct.

But a decision to -- the decision to dismiss an official is -- can be, and is here, the result, cumulative result, of a series of decisions.

It's not unlike what occurs in the criminal justice system.

Only a sentencing judge can send a defendant to prison, but that decision actually is a result of a series of other decisions, all of which are government action.

We think--

Justice Antonin Scalia: But you say that those decisions that contribute have to be decisions by supervisory personnel.

If your theory is correct, I don't know why that is so.

I don't know why a co-employee who has a hostile motivation and makes a report to the supervisor who ultimately dismisses the individual, why that -- that wouldn't qualify as well.

Mr. Schnapper: --Well, our standard is not whether it's a supervisor, but whether it's an official for whom the employer is liable under agency law.

That would not be every supervisor.

If a supervisor unrelated to this particular department put a false charge in a suggestion box, that wouldn't be any different.

Ordinarily, a coworker wouldn't qualify under agency principles as an agent of the employer when engaging in that conduct.

You have to look at the specific conduct and apply the traditional agency standards.

They are laid out, for example, in the Court's decision in Ellerth, which refers to the two branches of agency law: Scope of employment, and action which is aided in, where the actor was aided in the conduct by his or her official position.

And I think those principles would not ordinarily apply to a coworker, but they would also not apply invariably to a supervisor.

This is not -- we are not advocating the supervisor versus non-supervisor distinction in Ellerth, but a return to just the traditional agency doctrines.

And we think those doctrines delineate who is the employer for the purposes of the statute, which bans action by the employer.

Justice Antonin Scalia: The employer would be liable for these lower supervisory employees here why?

Did they have authority to discharge?

Mr. Schnapper: No, they had other authorities.

They had -- well, there are two doctrines.

Justice Antonin Scalia: Why do they stand in different shoes from a co-employee who also contributes to the ultimate decision to fire?

Mr. Schnapper: But it's -- it's the core responsibility of -- in terms of scope of employment.

It's the core responsibility of a supervisor of a particular individual to be monitoring his or her behavior, reporting on it, perhaps initiating disciplinary matters -- measures.

That wouldn't be true of all supervisors.

It's only true of Mr. Staub's supervisors.

So -- what -- the kind of thing they did was the kind of work that they were employed to engage in, and that distinguishes them from, say, another supervisor who might slip a note into a suggestion box.

Second, the other branch, major branch, of agency law is that an employer is liable for actions of individuals when their conduct -- when they are aided in their conduct by their official position, which would not typically be true of a fellow worker.

But that could be true here.

For example, Mulally set much of this in motion when, on the plaintiff's version of the facts, she issued the January 27th corrective order.

Everyone agrees she wrote it.

She signed it.

She was aided in doing that by her position as a supervisor.

A coworker couldn't do that.

And indeed, somebody else's supervisor couldn't have done that.

So--

Justice Samuel Alito: Could I just ask where -- could I ask where your argument leads?

Let's say that an employer calls in an employee and says: Now, we have to decide who to lay off, and we have looked at your record over the last 10 years, and here it is, all the evaluations you've gotten over the past 10 years, and based on all of that, we -- we've decide that you are going to be the person to be laid off.

Now if it turns out that one of those evaluations was rendered by someone who had an anti-military bias, would that make the employee -- would that be a prima facie case against the employer?

Mr. Schnapper: --It would.

But the affirmative--

Justice Samuel Alito: Even -- even if the employer at that time did every -- made every reasonable effort to investigate the validity of all the prior evaluations, still the employer would be on the hook?

Mr. Schnapper: --Yes.

There is nothing in the statute or in the common law that creates a special rule for thorough investigation.

Justice Anthony Kennedy: Well, that's a sweeping rule.

I was going to ask a related hypothetical.

Suppose the -- the officer who is in charge, charged with the decision to terminate or not to terminate says: I'm going to have a hearing.

You can both have counsel.

And you have who, is it -- suppose Buck -- suppose the two employees that were allegedly anti-military here testified and they said there was no anti-military bias, and the person is then terminated.

Later the employee has evidence that those two were lying.

Could he bring an action then?

Mr. Schnapper: Yes.

Yes.

Justice Anthony Kennedy: That's sweeping.

That's almost an insurer's liability insofar as the director of employment is concerned.

Mr. Schnapper: It's--

Justice Anthony Kennedy: He has to insure.

He has -- he has done everything he can, he has an hearing, and he has almost absolute liability.

If you look to section 219 of the Restatement of Agency, 219 part 2(b) provides for liability based on negligence, but part 2(d), regardless of whether there is negligence, provides liability if you're added in your -- aided in your conduct by the -- by your position.

Now, it's possible, depending on the exact facts, that the situation you described wouldn't fit into scope of employment or aided in.

If you just had two people whose only role was just as witnesses, then they're not acting as agents, they are just witnesses, perhaps.

Justice Ruth Bader Ginsburg: But there is--

Mr. Schnapper: But there is no--

Justice Ruth Bader Ginsburg: --There is this defense for the employer that, no matter that there was this ill will, there was enough else to warrant termination of this employee.

And so the--

Mr. Schnapper: --That's correct, Your Honor.

And it's the language of section 4311(c)(1) that is critical here.

The statute provides that if an improper motive was a motivating factor there is a defense.

But there is only one defense, and the defense is a showing the employer would have fired the plaintiff anyway.

The language is mandatory.

It says if the defense is not made out, the employer shall be considered to have violated the statute.

But the clearest enunciation of the error in the Seventh Circuit is the language at page 47 of the Joint Appendix where the court says: Without regard to the jury verdict here, the employer is off the hook if the decisionmaker did her own investigation.

That's an additional defense.

And it's simply inconsistent with the language of the statute.

Now, that may not have been -- that may have been harsh, but it's what the statute says.

Justice Samuel Alito: That isn't what the statute says.

You jump over the language of the statute.

It has to be a motivating factor in the decision to discharge.

And that speaks -- that looks natural -- the natural reading of that is that it looks at the motivation of the person who actually makes the decision to discharge.

Now, I'm not suggesting that's the right rule.

That's a very unattractive rule.

But the rule that you have suggested is also a very unattractive rule, one that I doubt the Congress intended to adopt.

Is there no reasonable middle position here?

It's all or nothing?

Mr. Schnapper: Well, I think that the kind of circumstances that the Court has pointed to would be at the remedy stage.

The remedies are discretionary and, whereas 4311(c)(1) says 4323 in describing all the remedies says "may".

And so a court could take those things into account in framing a remedy.

And certainly the good faith efforts of someone in Buck's position, for example, would be relevant to a determination of whether a violation was willful.

And that in fact reflects what happened in this case, which is that the jury found that there was a violation -- found that the -- the motivations involved here included an improper motivation, rejected the 4311(c)(1) defense, but then found the violation wasn't willful.

So I think, given the structure of the statute, the play here, the ability to adjust to those circumstances, is in the remedy provision, not in the mandatory language of the 4311(c)(1).

Justice Sonia Sotomayor: Isn't that -- the government's formulation that the discrimination has to play a substantial role in the termination a limiting principle?

I mean, you answered or appeared to be answering Justice Alito that in a 10-year history if one report of discrimination existed that that would shift the burden to the employer.

Is that an accurate statement of law?

That one report has to play a role that is more than a mere existence, doesn't it?

Mr. Schnapper: Well, in that regard I think we would articulate the standard differently.

Justice Sonia Sotomayor: Than the SG?

Mr. Schnapper: Yes.

The language in the statute is not a substantial motivating factor.

It's a motivating factor.

And that choice of language is clearly deliberate.

This whole -- this language in this provision derives from this Court's decision in Price Waterhouse--

Justice Sonia Sotomayor: But it has to have some materiality to the decision.

I mean, it has to have -- it has to play not just any role.

It has to play a material role in the decision, no?

Or -- they use "substantial".

It could be "material".

Mr. Schnapper: --If I could go back to Price Waterhouse and explain how we got to this language.

It was a sharply divide opinion.

The plurality standard of Justice Brennan said "a motivating factor".

Justice White's standard was "a substantial motivating factor".

Justice O'Connor's standard was "substantial".

Justice Kennedy pointed out in his dissenting opinion that was going to lead to fights about how much was enough to be substantial.

When Congress then wrote the 1991 Civil Rights Act, from which this language derives, amending Title VII they used the Brennan language, "a motivating factor".

They didn't use "substantial" and I think that was clearly deliberate.

Anyone who read Price Waterhouse -- and that provision was written about Price Waterhouse -- would have understood that that was a difference within the Court and they made that choice.

I find it difficult to grasp the distinction that you draw or what is seems could possibly exist between a willful motivating factor and a non-willful motivating factor.

I mean, to say that it's motivating is -- is to say that it's willful, it seems to me.

But you want us to draw a distinction between a willful motivating factor and a non-willful motivating factor?

Mr. Schnapper: That's not our position, Justice Scalia.

Our position is that, with regard to the liability determination in 4311, that any motivating factor is what is required.

If you have a number of different officials involved, Buck and Mulally and Korenchuk, if anyone who played a role in this had an unlawful motive that satisfies 4311(c)(1) and the burden shifts to the employer to show it would have done the same thing anyway.

Willfulness doesn't have that same language about a motivating factor.

It just asks whether the employer's violation was willful.

This Court's decision about willfulness in Thurston and Hazen Paper I think are broad enough to encompass a situation where you had several different officials.

And if I might--

Justice Antonin Scalia: You want to hold the employer liable for the actions of these other officials, other than the one who did the firing.

And if they are liable for -- if you hold them the employer liable for their contribution to the firing, it seems to me you have to hold him liable for their willfulness as well.

Mr. Schnapper: --It's our view that the language of the statute permits that distinction because of the discretionary nature of the remedy provision as opposed to the mandatory nature of 4311(c)(1).

I would like to reserve the balance of my time.

Chief Justice John G. Roberts: Thank you, Mr. Schnapper.

Mr. Miller.

ORAL ARGUMENT OF ERIC D. MILLER, ON BEHALF OF THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING PETITIONER

Mr. Miller: Mr. Chief Justice, and may it please the Court:

An employer is liable under USERRA when a supervisor acting with a discriminatory motive uses a delegated authority to cause an adverse employment action.

The court of appeals held that liability does not attach unless that supervisor exerts singular influence over the decisionmaker.

But that standard is inconsistent with the statute for two reasons.

First, it's incompatible with the statutory definition of "employer", which includes not just the ultimate decisionmaker, but any person to whom the employer has delegated the performance of significant employment responsibilities.

Second, it's contrary to the statute's causation standard, which requires only that military status be a motivating factor, not necessarily a singularly important factor or the determinative factor in the adverse employment action.

Now--

Chief Justice John G. Roberts: Do you regard -- is that the same as a but-for cause, motivating factor?

Mr. Miller: --No.

There is two separate components to the inquiry.

First -- the first is that it has to be a motivating factor, and that is the plaintiff's burden to establish in order to make a prima facie case under section 4311(c).

And then there is an affirmative defense if the employer can show that it was not a but-for factor in the sense that, you know, even had the person not been in the military the same action would have been taken.

That's the -- if the employer can show that, then it's absolved of liability.

Justice Sonia Sotomayor: Are you using proximate cause in but-for, or are you suggesting a different formulation of causation?

Something can be a motivating factor if it is one of many factors, but in our view it does need to be more than a trivial or de minimus factor and if you have a situation where the bias -- the action of the biased supervisor leads through a long and improbable and unforeseeable chain of causation to the adverse employment action, you might have a but-for cause but you wouldn't have proximate cause and it wouldn't be a motivating factor.

Now, this case, and I think most real world cases, are quite different from that.

Here we have a termination decision and that was made by Buck on the basis of the January 27th warning that was given to Petitioner and the report that Petitioner had not complied with that warning.

And both parts of that, the warning issued by Mulally and the report of noncompliance that came from Korenchuk, both parts of that the jury could have concluded were--

Justice Sonia Sotomayor: In that formulation as you've just articulated, where do you place your test of a subordinate setting in motion and playing a substantial role?

What does that test that you proposed in your brief -- how does it fit into this?

Mr. Miller: --The -- the discriminatorily motivated actions in this case, the evidence interpreted in the light most favorable to Petitioner, were the decision of Mulally to write up Petitioner for this January 27th incident, and that was motivated by her hostility to him because of his status in the Army Reserves; and then the decision of Korenchuk to report that he had violated the terms of that January 27th warning, and that was also motivated by his hostility to Petitioner's membership in the -- in the Army Reserves.

And both of those decisions had a substantial causal role in the -- in the ultimate decision made by the employer to terminate.

And because both of those people, Mulally and Korenchuk--

Justice Sonia Sotomayor: Your -- Petitioner's counsel argues that there is no issue of -- in the motivating factor test, it doesn't have to be a substantial role; it just has to be a motivating factor, so that the subordinates--

Mr. Miller: --Well, this may just be a semantic disagreement.

We don't think it has to be substantial in the sense of predominant.

It can be one of -- there can be many factors and as long as it's one of them that's a motivating factor.

But it needs to be substantial in the sense of more than de minimus or more than trivial, something that the employer actually took into account as one of the reasons--

Justice Samuel Alito: What happens in the situation where a prior evaluation or some disciplinary action does have a substantial effect on the decision that's -- the employment decision that's made, but the employer has no notice that the prior evaluation or disciplinary action was based on a biased ground, or any reasonable way of finding out that it was based on a biased ground?

What happens in that situation?

Mr. Miller: --There would still be liability just as there is liability in the situation, which is quite common, where an employer gives a single official the authority to both observe an employee's behavior and make a decision to terminate.

If that single official is biased, and makes a decision on the basis of that bias, then the employer is going to be liable even if the people who hired that official tried very hard to make sure that he wasn't biased.

And that's consistent with--

Justice Samuel Alito: How do you get around the statutory language that says that the motivating, it has to be a motivating factor in the -- in the action that is challenged?

Mr. Miller: --It -- it has to be a motivating -- the statute says a motivating factor in the employer's action.

Justice Samuel Alito: And the employer's action here is -- is discharge.

Mr. Miller: Yes, and the employer -- the employer is a corporation, and it's -- so you have to look at which individuals do you look at in figuring out whether it was a motivating factor or not, and the statute tells us that.

In the definition of 4303 it says that the employer includes everyone who has been delegated the performance of employment-related responsibilities.

Justice Samuel Alito: Yes, but those other people -- everybody who has been delegated authority under the -- by the employer are not -- is not involved in the action that's challenged--

Mr. Miller: They--

Justice Samuel Alito: --does not take the action of this challenge.

Mr. Miller: --They are not the last person who signs the piece of paper, but they certainly are part of the employer's--

Justice Samuel Alito: So maybe then the test is whether they were delegated some of the responsibility for the challenged action, were they delegated responsibility for making the discharge decision.

Mr. Miller: --They -- they were delegated supervisory responsibility by the -- by the employer, the authority to observe the people under their supervision, to evaluate and report on their performance, the authority to initiate disciplinary proceedings.

And they used that authority in a discriminatory manner and that, that conduct by them, was a substantial causal factor in the -- in the ultimate action of discharge.

And given the -- the statutory definition of employer and the motivating factor causation standard, that's enough under the statute for -- for liability.

Chief Justice John G. Roberts: What about a situation where a particular procedure such as the one here is set up for a discriminatory reason, and the employee is really upset with that, and so he, you know, starts a fire in the plant?

Wouldn't have had -- wouldn't have set the fire if not for the discriminatory purpose.

Now does he have a cause of action in that case when he is fired for setting -- setting the office on fire?

Mr. Miller: No, even though, as you say, in a sense there would be but-for causation.

Chief Justice John G. Roberts: Yes.

Mr. Miller: But it is not -- it is not under any standard of proximate causation, and not -- the initial discriminatory discipline or warning would not be a motivating or substantial factor in the ultimate decision to fire him.

He is being fired because of the intervening cause, but--

Chief Justice John G. Roberts: So you do accept that the traditional doctrine of an intervening cause is applicable in this?

Mr. Miller: --Some independent intervening cause.

Now, in this case we don't have anything like that.

Chief Justice John G. Roberts: Well, but what -- what independent intervening cause--

Mr. Miller: Independent of the employer.

In this case, we have a number of people, all of whom are agents of the same employer.

So under traditional principles of -- of an intervening cause, one can't say that any one of those agents of the employer was an intervening cause that broke the chain of causation from misconduct of the other agent of the employer.

You have a series of agents of the same employer engaging in a course of conduct that at the beginning of which is an unlawfully -- unlawful discriminatory motive that leads to the termination.

That's quite different from the employee deciding to start a fire or engage in some sort of misconduct that has nothing to do with his military status.

Chief Justice John G. Roberts: --Well, I'm sorry -- but I think the end there just kind of glided over the whole issue.

You say it had nothing to do with his military status.

It has to do with a procedure that was set up because the employer was discriminating against him because of his military status.

So it certainly had something to do with his military status.

Mr. Miller: It is not, I think it -- one would hope it is not a foreseeable result of discipline given to an employee that he would then start a fire.

Chief Justice John G. Roberts: Well, I know, but the hypothetical is extreme to try to flesh out your position.

You can certainly imagine an employee reacting in a particular way by being put through procedures that were set up in a discriminatory manner, that would seem to anybody to be a basis for termination, even though the groundwork was laid by the discriminatory procedure.

Mr. Miller: One would not normally think that, even if it's less extreme than starting a fire, that a course of misconduct by the employee is a foreseeable result of a discriminatory--

But the Seventh Circuit, applying what it calls the "cat's paw" doctrine, gives Staub and all other plaintiffs like him a second bite at the apple.

Justice Sonia Sotomayor: Let's look at the hypothetical.

Take it out of the facts of this case.

There are two supervisors, each of them have anti-military animus, and they both report that this gentleman was late when he wasn't.

Mr. Davis: Right.

Justice Sonia Sotomayor: Absolutely a falsehood.

They go in, they report it to Miss Buck.

Miss Buck does an investigation.

There are no witnesses.

There is no one else to prove that they came in late.

She just takes the supervisors' word.

She looks at their report moments after the employee didn't show up, and she says: He's a late-goer.

I don't know anything about anti-animus; I simply fired him because two supervisors who are trustworthy, I've looked at their files, they've never lied about anything before, they are pretty honest people.

What happens in that situation?

Mr. Davis: I think in that situation, consistent with the "cat's paw" analysis, with the facts that you set up, the two supervisors so dominated her decision that there would be likely a finding that the case goes to the jury.

Justice Sonia Sotomayor: How?

She went and looked for witnesses, didn't find them.

She looked at their records.

She did -- what happened here; other people have complained about these people, don't particularly like them.

Mr. Davis: But there being no other input whatsoever beyond that, there still is the domination issue.

If I change your hypothetical just a little bit and say that all of what you said is true, but in addition to that the fellow who got fired has a 10-year history of being late and she looked at that history, I think that she's now made an independent decision, which is what happened in this case, and therefore under the Seventh Circuit's rule no liability attaches and that's the right result.

Justice Sonia Sotomayor: Well, that's the question.

You just added a very important fact, which is a 10-year history of being late.

But on this day he wasn't late.

On this day the two supervisors made it up.

Would she have fired him absent that report?

Isn't that what the jury has to decide?

Mr. Davis: I think that is what the jury has to decide, but I'm not sure that case in the latter extended hypothetical gets that far.

Justice Sonia Sotomayor: Well, what this circuit's "cat's paw" theory does and what others do say, if she engaged in any investigation there's no liability.

Mr. Davis: I disagree with that a little bit.

I don't think if she engaged in any investigation that absolves of liability.

I think if she engages in a good faith investigation it absolves of liability.

Justice Ruth Bader Ginsburg: What was it -- what was it here?

Because when -- what was his name -- Korenchuk?

Mr. Davis: Right.

Justice Ruth Bader Ginsburg: --takes him into Buck's office and Buck hands him the pink slip and says, "You're fired", that the jury could have credited that evidence.

He was given no opportunity to explain the situation.

What kind of investigation?

What -- she looked at his personnel file.

What else was the investigation?

Mr. Davis: I will answer that.

Before I get to that, I disagree with the point about he wasn't given an opportunity to explain.

I think the record is clear he was given an opportunity to explain.

Justice Ruth Bader Ginsburg: When?

Mr. Davis: At the -- two times.

At the time he was discharged, on the day that Korenchuk brings him in, Korenchuk says:

"I was looking for you and couldn't find you. "

And in the record, in fact, Staub gave an explanation of his whereabouts.

Buck was there.

She heard it.

The second time is, approximately 5 days later, he files a five-page long grievance stating all--

Justice Ruth Bader Ginsburg: This is after he got his pink slip.

What -- what point -- when Korenchuk takes him into -- takes Staub into Buck's office, according to his testimony, which the jury could credit, he wasn't asked a thing.

She just said: Here's your pink slip; you're fired.

Mr. Davis: --I think the record shows he did give an explanation of his whereabouts.

The record also shows that he filed a five-page grievance contesting that action.

Justice Ruth Bader Ginsburg: After he was fired.

Mr. Davis: After he was fired.

And that Buck carefully investigated that and 5 days after it was filed gave him a letter saying: I have looked into it, I have considered all your arguments, including your argument that you were discharged on account of your military service, but I don't credit it.

And therefore, I'm sustaining the discharge.

And that is absolutely -- Mr. Staub knew that that works for him, because in 1998 he invoked the same procedure when he was discharged the first time for similar reasons and he was conditionally reinstated to employment at Proctor Hospital.

Justice Ruth Bader Ginsburg: Did I understand you to say that you do agree with the Seventh Circuit's "cat's paw" approach to this?

Mr. Davis: I do agree with it.

The Mr. Staub and others like him a second bite at the apple.

But he has to demonstrate that the person who possessed animus exercised so much control over the decisionmaker that that person became the true decisionmaker.

And that simply doesn't work in this case for a number of reasons.

Chief Justice John G. Roberts: Before you -- how is that consistent with the statutory language that requires that this discrimination simply be a motivating factor?

Mr. Davis: The answer to that is, the statute sets forth five factors, four or five factors, and says that one of the four or five employment actions has to be a motivating factor in arriving at the decision.

Justice Ruth Bader Ginsburg: Can we -- let's look at the statutory factors.

Mr. Davis: Okay.

It's 4311(a).

And it says--

Justice Ruth Bader Ginsburg: And where are you reading it from?

Mr. Davis: --From the third line -- well, I'm sorry, I can't tell you what line it is.

Justice Antonin Scalia: Page 3 of the blue brief.

Mr. Davis: It says that there are five actions that are prohibited: Denial of initial employment, reemployment, retention in employment, promotion, or any benefit of employment.

And it says that an employer cannot take action, one of those actions, on the basis of four factors: Membership, application for membership, performance, service -- or service of obligation in the uniformed services.

So there has to be something to connect one of those factors to one of those five actions.

And that's the literal meaning of the statute.

And I think the Seventh Circuit's view is absolutely consistent with that.

Chief Justice John G. Roberts: Well, I'm sorry.

The statute says is a motivating -- one of those four things, membership, application, et cetera, is a motivating factor in the action.

Mr. Davis: Correct.

Chief Justice John G. Roberts: And I understood your position to be that the supervisor has to have such dominant control that it's the "Cat's Paw".

Mr. Davis: That the subordinate's motivation is imputed actually to the decisionmaker, and ultimately to the employer.

Chief Justice John G. Roberts: Well, I guess where I'm having trouble following you is the total domination-motivating factor.

It seems like a much more stringent test that the Seventh Circuit has adopted.

Mr. Davis: Well, I think in the context of this case, Your Honor, it is not, because the definition of "employer" here not only includes Proctor Hospital, what you might call the ultimate employer, but it also includes the person who made the adverse employment decision.

And in this case, it's Linda Buck.

And this statute creates personal liability for Ms. Buck or anybody else who makes a decision if it's based on one of these factors contained in the statute.

I don't think there is any way a jury would be allowed to consider whether or not Ms. Buck is in violation of the statute because there is an absolute dearth of evidence that any of these factors motivated the decision she made.

Justice Sonia Sotomayor: But that assumes that the employment decision is solely hers.

It's hers, not based on her peccadilloes; it's hers based on the information that she has gathered.

Mr. Davis: I agree.

It is hers to the extent that she makes a good faith investigation into the background facts.

Justice Sonia Sotomayor: But -- but she's not acting in a vacuum.

She's acting on information that has been supplied to her by people who are authorized to supply that to her in the employment context.

Mr. Davis: And in this case, she is acting on an awful lot of information.

They pick out--

Justice Sonia Sotomayor: We are now talking past the individual case.

Mr. Davis: --Okay.

Justice Sonia Sotomayor: I am talking about just the legal analysis, which is: She is a decisionmaker, but there are multiple actors on behalf of the employer.

That's your adversary's position -- or participating in the process.

And they are saying if any of those actors in the process has been delegated employment duties that permit them to participate in this way, then if what motivates them is bias of this kind, then the employer is responsible, not just for Ms. Buck's activities, but for the two supervisors' discriminatory activities.

Mr. Davis: That would lead to a never-ending chain of looking backwards all the time over the course of perhaps a very long employment history to scour the record to determine, is there one single or two single actions out there that may somehow have come forward and caused this termination?

Justice Sonia Sotomayor: Well, in most situations an employer comes in and says: I fired X for X, Y, and Z reasons.

And if they don't mention one of those inconsequential or immaterial reports, why would a court rely on it at all?

It's not a motivating factor.

Mr. Davis: I'm not sure I thoroughly understand the hypothetical, but if the true decisionmaker there comes forward and says, I didn't know about this, I didn't rely upon it, I don't think that the animus can be imputed to the decisionmaker.

Justice Stephen G. Breyer: Why is this so complicated?

I'm probably missing something.

Mr. Davis: I don't think--

Justice Stephen G. Breyer: But the thing -- but it doesn't help you, I don't think, if it isn't complicated.

That is, because of Burlington we are only talking about a certain number of employees who could make an employer responsible.

Mr. Davis: --Right.

Justice Stephen G. Breyer: Right.

So those are supervisory people, we'll call them.

Mr. Davis: Correct.

Justice Stephen G. Breyer: Now, why don't we just stop there and just say, we have a statute, the statute says that if -- if a bad motive was a motivating -- had to be a motivating factor, discriminatory -- discriminatory motivating factor in the dismissal, then, unless you can prove an affirmative defense, you lose.

Why do we have to have something special if one of these small group of employees happens to be the person who said the last words or happens to be somebody who told somebody who said the last words or happens to be somebody who told the somebody the something-or-other?

You are just looking for one thing.

And there could be five zillion fact situations.

So why something special?

Why did the Seventh Circuit say where it's not the guy who said the last words you have to show, quote, "singular influence"?

Why singular influence?

Why not just what the statute says, that it was -- that it led to the -- what she said led to the discriminatory motive being a motivating factor, period, end of the matter.

No special "cat's paw" rule, no special anything rule.

Mr. Davis: No consideration of proximate cause, either.

Justice Stephen G. Breyer: Oh, no.

Of course you have to show proximate cause.

You have to show cause.

You always do.

I'm just saying, why have a special rule?

Why not have a special rule if somebody was on the second floor?

You wouldn't think of that.

So if you were not going to do it because the person's on the second floor, why do it because they happen to be somebody who told somebody rather than somebody who was the person who was told?

Mr. Davis: Because to motivate -- to be motivated by one of these factors, there has to be some element of proximate causation.

Justice Stephen G. Breyer: Fine.

You are perfectly entitled to say that.

But what I don't see that you are entitled to say are the words that the Seventh Circuit used, which is: You have to show jury that there was sufficient evidence to support a finding of singular influence.

Mr. Davis: I think that--

Justice Stephen G. Breyer: That doesn't just sound like it was a motivating cause.

That sounds like something really special.

Mr. Davis: --I think that that is the Seventh Circuit's way of saying proximate cause.

Justice Stephen G. Breyer: Ah, okay.

So why don't we say: Seventh Circuit, if that's your way of saying it is just a normal thing like cause, we accept that, but please don't use those words.

And because you might have used -- you might have used them meaning something else, we will send this back so we are certain that what you are doing is applying the same test to everything.

In other words, was it a motivating factor?

Mr. Davis: I think you could say that.

Justice Stephen G. Breyer: All right.

That seems like a good resolution of this case to me.

I don't know if it does to them.

Justice Antonin Scalia: I think that you've misread -- I think that you've misread the "cat's paw" principle of the court of appeals.

I don't think that it is, to them, a determination of proximate cause at all.

As I understand their opinion, they say that the statute requires that the -- let me get the right language here -- that the discriminatory, prohibited discriminatory factor, must have been a motivating factor in the employer's action.

And they say that means it must have motivated the person who took the employer's action.

It's not a motivating factor in the employer's action unless the person who took the action on behalf of the employer had that as its motive.

Then the court of appeals makes an exception: However, if the person who appears to be taking the action on behalf of the employer is really not the person who took the action, but was totally under the control of a subordinate who -- and the person just swallowed that subordinate's determination, then we will hold, even though the ultimate firing -- the person who signed the pink slip, even though that person didn't have the motive -- if in fact the decision was effectively the decision of a lower subordinate, we will hold the employer.

It has nothing to do with proximate cause.

It has to do with the text that it has to be a motivating factor in the employer's action; not a motivating factor somewhere down the line, but in the employer's action.

That's how I read the court of appeals opinion.

Mr. Davis: And I agree with that, and we get back to the notion that in this case, it was Ms. Buck who made the decision.

She made the--

Justice Ruth Bader Ginsburg: But the--

Mr. Davis: --I'm sorry.

Justice Ruth Bader Ginsburg: --But Ms. Buck never would have made this decision if Korenchuk hadn't come in and said: Here's Staub, he's goofing off; he was told to tell me when he was going to be absent, and he didn't.

Korenchuk, who has the absent -- is a motivating factor certainly in what happened to Mr. Staub, because if you didn't have Mr. Korenchuk marching Staub into Buck's office he would have retained his job.

Wasn't his last -- his most recent performance rating very good?

Mr. Davis: Only on one respect.

He received a technical "very good", but with respect to the narrative portion of that evaluation it says:

"I want you to stay in the department when you are being paid to work and not to be out wandering around. "

Justice Ruth Bader Ginsburg: In any case, there was no indication, apart from Korenchuk's coming in, that Buck would have taken any adverse action against Staub.

Mr. Davis: I don't think we know the answer to that.

It was--

Justice Antonin Scalia: That's not the point.

It seems to me you have to establish -- we are not going to second-guess the jury determination here.

I understood your point to be that there's a difference between a motivating factor in the decision, which means the person who made the decision on behalf of the employer must have had that motive, and on the other hand, a factor which was relevant to the decision, or a factor which influenced the decision.

That's quite different from a motivating factor in the decision.

You have to get us to believe -- and I'm not sure we will -- that motivating factor in the decision refers to motive on the part of the person who made the decision.

That's essentially your point, isn't it?

Mr. Davis: --Yes.

Justice Stephen G. Breyer: Then you can't agree with me, because my question was why would that be?

You have two people, A and B, they are both supervisors; in the one case B fires the employee because he is in the Army, and he says it: Ha, ha, that's why I'm doing it.

In the second case he fires the employee because he thought the employee was, in one of Justice Sotomayor's hypotheticals or anyone else, he fires him for a perfectly good reason, but A has lied about it.

And the reason A lied about it was because she wanted to tell him a lie so B would fire the employee, and her reason is because he's in the Army.

Those two situations, the second seems to me one of 80 -- 80 million situations, fact-related, that could arise, and I don't know why we want a special standard for such a situation.

Why not just ask the overall question, was this action an action that was -- in which the bad motive was a motivating factor.

Forget psychoanalysis of A.

B is good enough -- or vice versa.

That was my question.

Mr. Davis: And in B, the employer could not be liable.

In B the person who made the decision, the employer, was not motivated by one of the factors in the statute; that person couldn't be liable.

If that person can't be liable, how can that employer of that person be vicariously liable?

I don't think they can.

Justice Stephen G. Breyer: Because together they dismissed the employee.

Mr. Davis: Oh, no.

Justice Stephen G. Breyer: One by supplying the false statement, the other by acting on it.

Mr. Davis: I disagree on that.

A corporation can only act through its agents.

Justice Stephen G. Breyer: They are both agents.

That's why I made them both Burlington people.

I wanted to get them in the group.

They both have the same Burlington status, so we get that issue out of it.

And together they fire this individual.

In the absence of either the one or the other, he wouldn't have been fired.

Mr. Davis: I have listened to the hypothetical long enough that I have lost track of who made the decision to fire him.

Justice Stephen G. Breyer: --Answer it as you wish or as you understand it.

Mr. Davis: As I understand it, the second person in the hypothetical had no motivation whatsoever under the statute to cause the discharge and therefore the employer wouldn't be liable for that decision.

Justice Ruth Bader Ginsburg: Well, your position is -- it coincides with the Seventh Circuit, but it is in opposition to the Secretary of Labor's commentary on how this works.

The Secretary of Labor's commentary is it's a motivating factor, and if Korenchuk precipitates this whole thing, that's a motivating factor.

Do we -- I mean, this is the Secretary of Labor administers the statute.

Do we give any weight to the government's official position on what a motivating factor means?

Mr. Davis: Normally you would give weight to the government's position, but I think the government's position has to be consistent with the precise language of the statute.

Justice Antonin Scalia: How does the Secretary of Labor administer this statute?

What are -- what are his or her responsibilities under the statute?

Mr. Davis: There can be a charge filed with the Secretary of Labor, which the Secretary of Labor would then investigate.

The Secretary of Labor has the option to bring an action should the Secretary choose to do so.

But coterminously, the individual service person can bring an independent cause of action, and that's what happened in this case.

In this case there was no Secretary of Labor involvement.

Justice Anthony Kennedy: Well, why isn't this just governed by the standard principles of tort for concurrent actors?

Actor A was not negligent; actor B was; they both contributed to the accident.

And we look to the Restatement of Torts, which is whether or not the wrongful actor made a significant contribution.

That's -- that's the end of it.

Mr. Davis: I think that the problem with this situation is, is that one of the actors here, the decision that she made, being Mulally, and that's with respect to whom the most evidence of animus was adduced, didn't commit an action that would be actionable under USERRA.

There -- there is no way that issuing the constructive advice record on January 27 violated the statute, even if it was motivated by animus.

Justice Anthony Kennedy: But we are -- but we are talking about the test.

The test I gave you is quite different from the "cat's paw" test.

And if you use the test something along the lines that I formulated, I don't know if that's precisely what the Restatement says--

Mr. Davis: Sure.

Justice Anthony Kennedy: --but to that general effect, the instruction given to the jury was really overprotective of your client, under the standard concurrent -- concurrent causation analysis.

Mr. Davis: The instruction may have been somewhat protective, but the problem is, prior to issuing that instruction the district court did no analysis whatsoever to determine if the instruction was warranted in the first place, and that was simply our point to the Seventh Circuit.

Before you allow this to fall into the lap of a jury and try and explain to a jury, as opposed to the Supreme Court, what it means to be a "cat's paw" in the agency theory, the district court should at least make an initial determination that that's what we have here.

Justice Antonin Scalia: Can I turn to the Secretary of Labor's regulations?

Are what we talking about anything more than the following statement in his commentary accompanying the final regs, namely that an employee, quote,

"need not show that his or her protected activities or status was the sole cause of the employment action. "

"The person's activities or status need be only one of the factors that a truthful employer would list if asked for the reasons for its decision. "

Is that -- is that the only--

Mr. Davis: I believe that is the only thing with -- there may be a section later on, Your Honor, in the regs that deals with--

Justice Antonin Scalia: --This is the one that the government refers to.

Mr. Davis: --That is certainly the commentary that goes with it.

I agree with that.

Justice Antonin Scalia: That doesn't seem to me to be so damning of your case.

I think if this employer had been asked the reasons for its decision it would have given Ms. Buck's reasons.

Mr. Davis: Ms. Buck would have said: I let him go because he has this veritable tsunami of bad behaviors, what he is accused of is absolutely consistent with it, and I made the decision.

Is it a truthful statement by her?

It is absolutely a truthful statement by her, and that was the reason for her actions.

I think Ms. Buck's consideration of the discharge decision wasn't limited to one source.

It clearly was not.

No one shaped or directed the scope of her determination.

Even more important, she gave Mr. Staub the opportunity to tell his side of the story.

And after considering all that, she decided that his discharge was warranted.

Justice Ruth Bader Ginsburg: Could a jury find from the testimony before -- before it, that at the time he received his pink slip -- let's not talk about the grievance after--

Mr. Davis: Right.

Justice Ruth Bader Ginsburg: --at the time he got the grievance slip, he was not given any opportunity to explain that this charge was not warranted, that he had tried to reach Korenchuk on the phone to tell him, we are going to lunch, and was unable to.

He did not have an opportunity to say that to Ms. Buck.

Mr. Davis: Again, Your Honor, I believe the record says -- and I apologize, I can't quote it from the page -- that in fact Mr. Staub protested that what he was accused of, i.e., not being where he was supposed to be, was wrong.

And he stated his version of it.

If there are no other questions, Your Honor, I would respectfully request that the decision of the Seventh Circuit be affirmed.

Thank you.

Chief Justice John G. Roberts: Thank you, Mr. Davis.

Mr. Schnapper, you have 4 minutes remaining.

Justice Ruth Bader Ginsburg: Mr. Schnapper, is that your recollection of this record, too, that he did state his version before he got the pink slip?

REBUTTAL ARGUMENT OF ERIC SCHNAPPER ON BEHALF OF THE PETITIONER

Mr. Schnapper: I think it's somewhat unclear what happened.

It's complicated by the fact that the defendant's account of why he was fired has changed.

One, the written explanation was that he never obeyed the rule for the 3 months it was in effect.

The explanation given by Buck was that she had been told that he wasn't -- couldn't have been found on the 19th.

The story that was given to Staub at the time was that Korenchuk couldn't find him on the 20th, so if he was responding to that he was responding to the wrong question.

Justice Antonin Scalia: Well, I don't think anybody thought that Buck would have fired him just for that one absence.

That was the trigger.

But it was the trigger that followed a long series of prior absences for which he had been disciplined before.

I don't see any inconsistency between those two versions.

Mr. Schnapper: But those aren't the versions in the written record at the time.

The written record at the time says he is fired because he has been breaking this rule ever since January.

Nobody claims that's true.

If I -- we -- a number of questions, I think particularly Justice Alito asked whether Congress would have intended the result in this case.

We don't think it's as harsh as you do, but we think that the intent is particularly clear here.

Section 4301(1) says the purpose, the codified purpose, the purpose of the statute is to minimize the disadvantages to civilian careers that can result from service in the military.

And that it seems to me you have to read -- you have to read the rest of the statute.

Secondly, this USERRA is unique among employment statutes or close to it, because the employer has an economic incentive to break the law.

It's expensive to keep reservists on the books.

And Mulally and Korenchuk objected to Staub working there precisely because it cost them more money when he went to drill, and it cost them more money when he was called up for operation Iraqi Freedom.

Justice Samuel Alito: Well, do you think that the standard for employer liability is different under this statute than under other federal antidiscrimination statutes?

Is that what you were just suggesting?

Mr. Schnapper: I think there are particularly compelling textual reasons for the position we are urging here, other statutes have different language.

You might decide this case--

Justice Samuel Alito: So if we were to hold here that the VII or under the ADEA or under the ADA?

Mr. Schnapper: --Well, we think that would be wrong for some of the reasons we set out in our brief, but you could write an opinion that only addressed it under USERRA and left those other questions open.

Justice Ruth Bader Ginsburg: Why would Title VII be different?

Mr. Schnapper: Of the language in Title VII is similar to 4311(c)(1), but the language that I just read about the purpose isn't in Title VII.

So you could decide this case on somewhat narrower grounds and not reach every situation.

The -- the interpretation of USERRA adopted by the Seventh Circuit creates a serious loophole in the statute.

As a number of the amici have pointed out, the amici on the other side, employers typically make a disciplinary decision as a result of a bunch of different decisions.

The Seventh Circuit holds that so long as the employer divides up those responsibilities, USERRA will not apply to many of the decisions.

On their view, but USERRA applies only to what the last decisionmaker did.

And the narrower her role, the narrower the protections of the statute.

This statute should not be read in that way.

Not only because of the language that I have recounted, but because USERRA, it's reemployment rights and it's anti-discrimination rights play an essential role in the national defense.

They safeguard the livelihood of men and women who safeguard the nation.

Justice Antonin Scalia: This case comes to us on writ of certiorari to the United States Court of Appeals for the Seventh Circuit.

The petitioner, Vincent Staub worked as an angiography technician for the respondent, Proctor Hospital until 2004 when he was fired.

Staub and Proctor dispute the facts surrounding with firing, but because a jury found for Staub in his claim of employment discrimination against Proctor, we describe the facts viewed in the light most favorable to Staub.

While employed by Proctor, Staub was a member of the United States Army Reserve, which required him to attend drill one weekend per month and to train full time for two to three weeks a year.

In January 2004, Mulally issued Staub a disciplinary warning for purportedly violating a company rule.

The warning included a directive that Staub to report to Mulally or to Korenchuk when he had no patients.

According to Staub, Mulally's justification for the disciplinary warning was false.

In April 2004, Korenchuk informed Linda Buck, Proctor's vice president of human resources, that Staub had violated the directive in the January disciplinary warning, an accusation which according to Staub was also false.

Buck relied on Korenchuk's accusation, however, and after reviewing Staub's personnel file, she decided to fire him.

The termination notice stated that Staub had ignored the directive issued in the January 2004 warning.

Staub sued Proctor under the Uniformed Services Employment and Reemployment Rights Act of 1994 or USERRA, which prohibits employment discrimination on the basis of a person's membership in or obligation to a uniformed service.

It provides that an employer shall be considered to have engaged in employment discrimination if the person's membership or obligation is a “motivating factor in the employer's action.”

Staub claimed that his discharge was motivated by hostility to his obligations as a military reservist.

His contention was not that Buck, who was the -- the Proctor agent who did the actual firing, not that Buck had any such hostility but that Mulally and Korenchuk did and that their actions influenced Buck's ultimate employment decision.

The jury found in Staub's favor and awarded $57,000 in change in damages.

The Seventh Circuit reversed, holding that Proctor was entitled to judgment as a matter of law.

The Court observed that Staub had brought what the Seventh Circuit calls a “cat's paw case", meaning that he sought to hold his employer liable for the animus of a supervisor who was not charged with making the ultimate employment decision.

The theory is that that agent is just the "cat's paw" of agents further down the line.

It explained that under Seventh Circuit precedent a “cat's paw” case could not succeed unless the nondecisionmaker exercised such singular influence over the decisionmaker that the decision to terminate was the product of “blind reliance.”

It then noted that Buck looked beyond what Mulally and Korenchuk said relying in part on her review of Staub's personnel file.

Because the undisputed evidence established that Buck was not wholly dependent on the advice of Korenchuk and Mulally, the Court held that Proctor was entitled to judgment.

In an opinion filed with the clerk today, we reversed the judgment of the Seventh Circuit.

The central difficulty in this case, of course, is construing the statutory phrase “motivating factor in the employment's action.”

When the company official who makes the decision to take an adverse employment action is personally acting out of hostility to the employee's membership in or obligation to a uniformed service, a motivating factor obviously exists.

The problem we confront in this case arises when that official has no discriminatory animus, as Buck did not, but is influenced by previous company action that is the product of a like animus in someone else and someone else who is an agent of the employer.

In approaching this question, we start from the premise that when Congress creates a federal tort, it adopts the background of general tort law.

Intentional torts such as this, as distinguished from negligent or reckless torts, generally require that the actor intend the consequences of an act, not simply the act itself.

Proctor contents that the employer is not liable unless the de facto decisionmaker rather than an agent on whom that decisionmaker relies is motivated by discriminatory animus.

We think that proposed rule is overly narrow.

Animus and responsibility for the adverse action can both be -- can both be attributed to the earlier agent (here, Staub's supervisors) if the adverse action is the intended consequence of that agent's discriminatory conduct.

So long as the agent intends, for discriminatory reasons, that the adverse action occur, he has the scienter required to be liable under USERRA.

And -- and his scienter can be attributed to his employer since he is an agent.

And it is axi -- axiomatic under tort law, that the exercise of judgment by the decisionmaker does not prevent the earlier agent's action (and hence the earlier agent's discriminatory animus) from being the proximate cause of the harm.

Proximate cause excludes only those links that are too remote, purely contingent or indirect.

We do not think that the ultimate decisionmaker's exercise of judgment automatically renders the link to the supervisor's bias "remote" or "purely contingent."

Moreover, the approach urged upon us by Proctor gives an unlikely meaning to a provision that is designed to prevent employer discrimination.

An employer's authority to reward, punish or dismiss is often allocated among multiple agents.

The one who makes the ultimate decision does so, on the basis of performance assessments by other supervisors.

Proctor's view would have the consequence that if an employer isolates a personnel official from an employee's supervisors, vests the decision to take adverse employment actions in that official alone, and asks -- and asks that official to review the employee's personnel file before taking the adverse action, then the employer will be effectively shielded from discriminatory acts and recommendations of supervisors that were designed and intended to produce the adverse action.

That seems to us an implausible meaning of the text, and one that is not compelled by its words.

We therefore hold that if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA.

Applying our analysis to the facts of this case, it is clear that the Seventh Circuit's judgment must be reversed.

There was evidence that Mulally's and Korenchuk's actions were motivated by hostility toward Staub's military obligations, that Mulally's and Korenchuk's actions caused Buck to fire Staub, and that both Mulally and Korenchuk had the specific intent to cause Staub to be dis -- to be dismissed.

Whether the variance between the jury instruction in this case and our -- and the rule we announced today was harmless error or should mandate a new trial, it is a matter that the Seventh Circuit may consider in the first instance on remand.

The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings.

Justice Alito has filed an opinion concurring in the judgment in which Justice Thomas has joined.

Justice Kagan took no part in the consideration or decision of the case.